Tamayza Fadwa v. Lyons et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Chief Judge Philip A. Brimmer
Civil Action No. 25-cv-03660-PAB
ISSAM MOHAMAD TAMAYZA FADWA
Petitioner,
v.
TODD M. LYONS, in his official capacity as Acting Director, U.S. Immigration and
Customs Enforcement,
ROBERT HAGAN, Field Director of the Denver Field Office, and
JUAN BALTAZAR,1 Warden, Denver Contract Detention Facility,
Respondents.
ORDER
This matter comes before the Court on petitioner Issam Mohamad Tamayza
Fadwa’s Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 [Docket No.
1]. Respondents filed a response. Docket No. 10. Petitioner filed a reply. Docket No.
11.2
1 Pursuant to Federal Rule of Civil Procedure 25(d), Juan Baltazar is
automatically substituted as a party in this action.
2 Neither party requested a hearing on this matter. A federal court is not required
to hold a hearing on a habeas petition. See Semien v. United States, 746 F. App’x 303,
308 (5th Cir. 2018) (“A federal habeas court is not required to conduct an evidentiary
hearing.”); Erikson v. Rowland, 991 F.2d 803, 1993 WL 128865, at *4 (9th Cir. Apr. 26,
1993) (unpublished table decision) (“The district court is not required to hold an
evidentiary hearing when considering habeas corpus petitions.”); Davis v. Kobach, 2023
WL 2375111, at *5 (D. Kan. Mar. 6, 2023) (“Petitioner . . . has no right to a hearing in a
federal habeas matter, nor is it standard practice for the Court to hold such hearings.”).
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I. BACKGROUND3
On October 15, 2024, petitioner Issam Mohamad Tamayza Fadwa entered the
United States at the southern border, without proper documentation, and was detained
by Immigration and Customs Enforcement (“ICE”) near Otay Mesa, California. Docket
No. 1 at 9, ¶ 32; Docket No. 10-1 at 2; ¶ 4. Mr. Fadwa is Palestinian, and the United
States considers him to be stateless. Docket No. 1 at 9, ¶ 31. He is currently being
detained at the ICE contract detention facility in Aurora, Colorado (“Aurora CDF”).4
Docket No. 10-1 at 2, ¶ 3. On October 16, 2024, Customs and Border Patrol issued a
notice and order of expedited removal pursuant to 8 U.S.C. § 1225(b)(1). Id., ¶ 8. Mr.
Fadwa subsequently claimed fear of persecution and sought asylum in the United
States. Id. at 3, ¶ 10. U.S. Citizenship and Immigration Services conducted a “credible
fear” interview, where Mr. Fadwa described the violence he experienced living in the
West Bank and expressed a fear of the Israeli government and Palestinian terrorist
groups. Docket No. 1-2 at 15-21, 29-35. Asylum officers found that Mr. Fadwa did not
establish a risk of persecution based on his race, religion, nationality, political opinion,
or membership in a particular social group. Id. at 41-45. Mr. Fadwa requested that an
immigration judge review the determination. Id. at 42. On February 7, 2025, an
immigration judge affirmed the negative credible fear determination, making Mr.
Fadwa’s order of removal administratively final. Docket No. 10-1 at 4, ¶¶ 17-18.
After Mr. Fadwa’s order of removal became administratively final, ICE attempted
to remove Mr. Fadwa to the Palestinian Territories. Id., ¶ 19. Because no commercial
3 The following facts are undisputed unless otherwise noted.
4 Although the parties refer to this facility as the Denver Contract Detention
Facility, Docket No. 1 at 1, ¶ 1; Docket No. 10 at 4, it is located in Aurora, Colorado.
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airlines fly to the Palestinian Territories, ICE air operations attempted to coordinate a
Special High-Risk Charter (“SHRC”) flight to a neighboring country. Id. at 4-5, ¶¶ 19,
20. On March 15, 2025, while coordinating an SHRC flight, ICE contacted Turkey,
Israel, and Lebanon about accepting Mr. Fadwa. Id. at 5, ¶ 21. ICE has not received
responses from these countries. Id. On April 24, 2025, Mr. Fadwa was transferred to a
processing center in El Paso, Texas for staging for removal to the Palestinian
Territories. Id., ¶ 22. ICE was unable to coordinate the SHRC flight and, on May 6,
2025, transferred Mr. Fadwa back to the Aurora CDF. Id., ¶ 23. On May 28, 2025, ICE
submitted a travel document application to the Israeli government on Mr. Fadwa’s
behalf. Id. at 5-6, ¶ 25. If issued, the travel document would allow Mr. Fadwa to travel
to Israel so that he could be escorted to the Palestinian Territories. Id. at 6, ¶ 25. ICE
followed up on the status of the travel document in July, September, October, and
November, but the Israeli government has not reviewed the application. Id., ¶ 26. The
Israeli government generally takes between 90 and 180 days to review travel document
applications. Id. If the travel document is issued, ICE intends to remove Mr. Fadwa by
having him fly into the Ben Gurion Airport in Tel Aviv and escort him through Israel to
the West Bank or Gaza. Id., ¶ 27.
On November 13, 2025, Mr. Fadwa filed a Petition for Writ of Habeas Corpus
pursuant to 28 U.S.C. § 2241. See Docket No. 1. Mr. Fadwa brings a claim for
violation of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1231(a) (Count One);
a substantive due process claim (Count Two); a claim that he should be released under
Zadvydas v. Davis, 533 U.S. 678 (2001) (Count Three); a procedural due process claim
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(Count Four); and a claim for violation of the INA, 8 U.S.C. § 1231(b) (Count Five). See
id. at 9-14, ¶¶ 37-62.
II. LEGAL STANDARD
A. Postremoval Detention
When a noncitizen is ordered removed from the United States, removal should
ordinarily be effectuated within a period of 90 days, known as the removal period. 8
U.S.C. § 1231(a)(1); see also Morales-Fernandez v. I.N.S., 418 F.3d 1116, 1123 (10th
Cir. 2005). During the removal period, the noncitizen must be detained. 8 U.S.C.
§ 1231(a)(2)(A). After the removal period has expired, the noncitizen “may be
detained.” 8 U.S.C. § 1231(a)(6). In Zadvydas, the Supreme Court considered whether
this language permitted indefinite detention. The Court noted that, “while ‘may’
suggests discretion, it does not necessarily suggest unlimited discretion. In that respect
the word ‘may’ is ambiguous.” 533 U.S. at 697. The Court did not find evidence that
demonstrated congressional intent to authorize indefinite detention. Id. at 699.
Additionally, the Court observed that:
A statute permitting indefinite detention of an alien would raise a serious
constitutional problem. The Fifth Amendment’s Due Process Clause forbids the
Government to “depriv[e]” any “person . . . of . . . liberty . . . without due process
of law.” Freedom from imprisonment—from government custody, detention, or
other forms of physical restraint—lies at the heart of the liberty that Clause
protects.
Id. at 690 (citing Foucha v. Louisiana, 504 U.S. 71, 80 (1992)). The Court
“interpret[ed] the statute to avoid a serious constitutional threat” and “conclude[d]
that, once removal is no longer reasonably foreseeable, continued detention is no
longer authorized by statute.” Id. at 699.
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Recognizing the traditional deference shown to the executive branch in
foreign policy, Zadvydas found it “practically necessary to recognize some
presumptively reasonable period of detention.” Id. at 700-01. The Court held that it
is presumptively reasonable to detain a noncitizen for six months to effectuate
removal. Id. at 701. After six months, the noncitizen challenging detention bears
the initial burden to “provide[ ] good reason to believe that there is no significant
likelihood of removal in the reasonably foreseeable future.” Id. Once he does so,
“the Government must respond with evidence sufficient to rebut that showing.” Id.
If the government meets its burden, continued detention is permitted; however, if
the government fails to demonstrate a significant likelihood of removal in the
reasonably foreseeable future, the noncitizen must be released. Id.
Zadvydas dealt with a noncitizen who was deemed removable after gaining
admission to the United States. Id. at 682. However, its holding has since been
expanded to apply to noncitizens who are deemed inadmissible. Clark v. Martinez,
543 U.S. 371, 378-379 (2005); see also Morales-Fernandez, 418 F.3d at 1123-24
(noting that Clark expanded the holding of Zadvydas to apply to inadmissible
noncitizens and granting an inadmissible noncitizen’s habeas petition).
B. Removal under 8 U.S.C. § 1231(b)(2)
Section 1231(b)(2) of Title 8 provides guidelines for determining which
countries a noncitizen may be removed to. As relevant here, § 1231(b)(2) provides:
(2) Other aliens
Subject to paragraph (3)--
(A) Selection of country by alien
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Except as otherwise provided in this paragraph--
(i) any alien not described in paragraph (1) who has been ordered
removed may designate one country to which the alien wants to be
removed, and
(ii) the Attorney General shall remove the alien to the country the alien
so designates.
(B) Limitation on designation
An alien may designate under subparagraph (A)(i) a foreign territory
contiguous to the United States, an adjacent island, or an island adjacent to
a foreign territory contiguous to the United States as the place to which the
alien is to be removed only if the alien is a native, citizen, subject, or national
of, or has resided in, that designated territory or island.
(C) Disregarding designation
The Attorney General may disregard a designation under subparagraph (A)(i)
if--
(i) the alien fails to designate a country promptly;
(ii) the government of the country does not inform the Attorney
General finally, within 30 days after the date the Attorney General first
inquires, whether the government will accept the alien into the country;
(iii) the government of the country is not willing to accept the alien into
the country; or
(iv) the Attorney General decides that removing the alien to the
country is prejudicial to the United States.
(D) Alternative country
If an alien is not removed to a country designated under subparagraph (A)(i),
the Attorney General shall remove the alien to a country of which the alien is
a subject, national, or citizen unless the government of the country--
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(i) does not inform the Attorney General or the alien finally, within 30
days after the date the Attorney General first inquires or within another
period of time the Attorney General decides is reasonable, whether
the government will accept the alien into the country; or
(ii) is not willing to accept the alien into the country.
(E) Additional removal countries
If an alien is not removed to a country under the previous subparagraphs of
this paragraph, the Attorney General shall remove the alien to any of the
following countries:
(i) The country from which the alien was admitted to the United States.
(ii) The country in which is located the foreign port from which the
alien left for the United States or for a foreign territory contiguous to
the United States.
(iii) A country in which the alien resided before the alien entered the
country from which the alien entered the United States.
(iv) The country in which the alien was born.
(v) The country that had sovereignty over the alien's birthplace when
the alien was born.
(vi) The country in which the alien's birthplace is located when the
alien is ordered removed.
(vii) If impracticable, inadvisable, or impossible to remove the alien to
each country described in a previous clause of this subparagraph,
another country whose government will accept the alien into that
country.
8 U.S.C. § 1231(b)(2).
The Supreme Court observed that:
The statute . . . provides four consecutive removal commands: (1) An alien
shall be removed to the country of his choice (subparagraphs (A) to (C)),
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unless one of the conditions eliminating that command is satisfied; (2)
otherwise he shall be removed to the country of which he is a citizen
(subparagraph (D)), unless one of the conditions eliminating that
command is satisfied; (3) otherwise he shall be removed to one of the
countries with which he has a lesser connection (clauses (i) to (vi) of
subparagraph (E)); or (4) if that is “impracticable, inadvisable, or
impossible,” he shall be removed to “another country whose government
will accept the alien into that country” (clause (vii) of subparagraph (E)).
Jama v. Immigr. & Customs Enf't, 543 U.S. 335, 341 (2005).
III. ANALYSIS
Respondents argue that Zadvydas set a “unitary due process standard” and
that any substantive due process claims should be analyzed under that standard.
Docket No. 10 at 2. Because the Court will grant habeas relief on Mr. Fadwa’s
Zadvydas claim, it need not address his other claims or determine the appropriate
standard for analyzing those claims.5 However, Mr. Fadwa’s fifth claim—that
respondents failed to adhere to the framework set out in § 1231(b)(2)—relates to his
Zadvydas claim.6 Thus, the Court will first analyze Mr. Fadwa’s fifth claim to the
extent it relates to his Zadvydas claim.
5 See Banks v. Dretke, 540 U.S. 668, 689 n.10 (2004) (finding it unnecessary to
address an additional claim in a habeas petition after granting full relief on one claim
because “any relief [petitioner] could obtain on that claim would be cumulative.”); Lyng
v. Nw. Indian Cemetery Protective Ass’n, 485 U.S. 439, 445 (1988) (stating that “[a]
fundamental and longstanding principle of judicial restraint requires that courts avoid
reaching constitutional questions in advance of the necessity of deciding them.”); Scott
v. Mullin, 303 F.3d 1222, 1232 (10th Cir. 2002) (declining to address the remaining
claims in a habeas petition after already granting habeas relief on one claim).
6 If respondents attempted to remove Mr. Fadwa to an improper country under
the framework set out under § 1231(b)(2), removal to that country would be
impermissible and would not be evidence that there is a significant likelihood of removal
in the reasonably foreseeable future.
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A. Where to Remove Mr. Fadwa under § 1231(b)(2)
While attempting to remove Mr. Fadwa to the Palestinian Territories, respondents
also sought to remove Mr. Fadwa to Turkey, Israel, or Lebanon. Docket No 10-1 at 5,
¶ 21. This is not in accordance with the requirements of § 1231(b)(2). 7 As discussed
above, § 1231(b)(2) first requires respondents to remove Mr. Fadwa to a country of his
choice, unless one of the conditions eliminating that command is satisfied. Jama, 543
U.S. at 341. Here, the government does not allege whether Mr. Fadwa has designated
such a country. If Mr. Fadwa did not make such a designation, or if that country did not
promptly inform the Attorney General that it would accept Mr. Fadwa, the government
would next have to try to remove Mr. Fadwa to the country of which he is a citizen. Id.
Mr. Fadwa alleges that he is a citizen of Palestine and respondents acknowledge that
he “possesses a passport or travel document issued by the Palestinian Authority.”
Docket No. 1 at 9, ¶ 31; Docket No. 10-1 at 2, ¶ 6. Mr. Fadwa is not a citizen of any
other country. Docket No. 1-2 at 11-12. Thus, respondents must remove Mr. Fadwa to
Palestine, unless the Palestinian Authority fails to inform the Attorney General or Mr.
Fadwa whether it will accept Mr. Fadwa within 30 days after the Attorney General
inquires or unless it is not willing to accept Mr. Fadwa. 8 U.S.C. § 1231(b)(2)(D).
Respondents do not allege whether the Palestinian Authority is willing to accept Mr.
7 Section 1231(b)(2) provides the standard for all noncitizens, except noncitizens
“who arrive[ ] at the United States and with respect to whom proceedings under section
1229a of this title were initiated at the time of such [noncitizen’s] arrival.” 8 U.S.C.
§ 1231(b)(1)(A). Section 1229a governs general removal proceedings. See 8 U.S.C.
§ 1229a. Here, Mr. Fadwa was not put in general removal proceedings under § 1229a,
but is subject to expedited removal proceedings under 8 U.S.C. § 1225(b)(1). Docket
No. 10-1 at 2, 4, ¶¶ 8, 18. Thus, 8 U.S.C. § 1231(b)(2) governs his case.
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Fadwa. If it is, and if it informed the Attorney General or Mr. Fadwa of that fact in the
appropriate time period, then respondents must remove Mr. Fadwa to Palestine.
If the Palestinian Authority is not willing to accept Mr. Fadwa, or if it did not inform
the Attorney General that it would accept him in the appropriate time period, then
respondents may remove Mr. Fadwa to any country with which he has a lesser
connection, as governed by 8 U.S.C. § 1231(b)(2)(E)(i)-(vi). As relevant here, this list
includes the country where Mr. Fadwa was born. § 1231(b)(2)(E)(iv). Mr. Fadwa was
born in Bethlehem. Docket No.1-2 at 12; Docket No. 10-1 at 2, ¶ 6. Only if it is
impracticable, inadvisable, or impossible to remove Mr. Fadwa to any country listed in
8 U.S.C. § 1231(b)(2)(E)(i)-(vi) would respondents be able to remove him to “another
country whose government will accept [him] into that country.”8 8 U.S.C.
§ 1231(b)(2)(E)(vii). Here, respondents do not allege that Turkey, Israel, or Lebanon
are countries with which Mr. Fadwa is connected to pursuant to 8 U.S.C.
§ 1231(b)(2)(E)(i)-(iv).9 Thus, Mr. Fadwa cannot be removed to these countries unless
it is impracticable, inadvisable, or impossible to remove him to Palestine (or any other
country that fits the requirements of 8 U.S.C. § 1231(b)(2)(E)(i)-(iv)). But respondents
8 Respondents can remove Mr. Fadwa to Palestine even if the Palestinian
Authority has not given its consent. See generally Jama, 543 U.S. at 348. Thus, if the
Palestinian Authority did not give its consent, that does not necessarily mean
respondents move on to next step of the § 1231(b)(2) framework. See id.
9 Section 1231(b)(2)(E)(iii) allows for possible removal to “[a] country in which the
[noncitizen] resided before the [noncitizen] entered the country from which the
[noncitizen] entered the United States.” Turkey might qualify as such a country,
because Mr. Fadwa’s passport has an expired Turkish visa bearing Mr. Fadwa’s
identity. Docket No. 10-1 at 2, ¶ 6. However, respondents do not allege that Turkey is
a country to which Mr. Fadwa could be removed under § 1231(b)(2)(E)(iii), and the
Turkish visa does not definitively prove that Mr. Fadwa resided in Turkey. Indeed, Mr.
Fadwa claims he has not lived anywhere outside of Palestine. Docket No. 1-2 at 33.
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do not argue that removal to Palestine is impracticable; in fact, they argue just the
opposite. Docket No. 10 at 8-10. Thus, it would be improper to remove Mr. Fadwa to
Turkey, Lebanon, or Israel at this time.
To their credit, respondents claim that ICE does not plan to remove Mr. Fadwa to
a third country. Id. at 12. Instead, respondents state that they intend to “remove
Petitioner to the Palestinian Territories by means of travel through Israel.” Id. However,
ICE solicited Turkey, Israel, and Lebanon to accept Mr. Fadwa into their countries.
Docket No. 10-1 at 5, ¶ 21. Because removal to those countries would be improper
under § 1231(b)(2), the Court will not consider those efforts in determining whether
there is a significant likelihood of removal in the reasonably foreseeable future.
B. Constitutionality of Continued Detention under Zadvydas
Mr. Fadwa has been detained for over ten months since his order of removal
became administratively final on February 7, 2025. Thus, the presumptively reasonable
six-month timeframe for effectuating his removal under Zadvydas has expired. Still, the
expiration of the six-month timeframe does not necessarily mean Mr. Fadwa must be
released. Zadvydas, 533 U.S. at 701. Instead, Mr. Fadwa has the initial burden to
provide the Court with “good reason to believe that there is no significant likelihood of
removal in the reasonably foreseeable future.” Id. This standard does not require Mr.
Fadwa to “show the absence of any prospect of removal—no matter how unlikely or
unforeseeable.” Id. at 702. Rather, he simply must show that removal is not
significantly likely in the reasonably foreseeable future. Id. at 701.
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Mr. Fadwa argues that the government’s inability to remove him over the
past nine months10 indicates that removal is not significantly likely in the reasonably
foreseeable future. Docket No. 1 at 12, ¶ 52. This is particularly true because,
under Zadvydas, “as the period of prior postremoval confinement grows, what
counts as the ‘reasonably foreseeable future’ conversely would have to shrink.” 533
U.S. at 701. Thus, because Mr. Fadwa has been detained for almost four months
after the presumptively reasonable timeframe ended, respondents must show that
Mr. Fadwa’s removal will likely occur in the very near future. The Court has good
reason to believe it will not. Respondents already made an unsuccessful attempt to
remove Mr. Fadwa to the Palestinian Territories on April 24, 2025, when they
transferred him to El Paso for a SHRC flight. Docket No. 10-1 at 5, ¶¶ 20, 22. Less
than two weeks later, respondents gave up on this effort and transferred Mr. Fadwa
back to the Aurora CDF. Id., ¶ 23. Respondents do not allege that there are
continuing efforts to charter a SHRC flight to the Palestinian Territories. Rather,
ICE is now working to coordinate a commercial flight to Tel Aviv, Israel and to escort
Mr. Fadwa through Israel to the West Bank or Gaza. Id. at 6, ¶ 27. To effectuate
this plan, ICE needs to receive travel documents from Israel, which it applied for on
May 28, 2025. Id. at 5-6, ¶ 25. ICE claims that these documents are usually issued
90 to 180 days after submitting an application. Id. at 6, ¶ 26. As of today, it has
been 195 days, with no indication that Mr. Fadwa’s application will be reviewed
anytime soon. Id. Moreover, ICE does not allege how Mr. Fadwa will be escorted
10 It has now been over ten months since the start of Mr. Fadwa’s post-removal
detention.
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from Tel Aviv to the West Bank or Gaza, which could prove challenging due to the
ongoing conflict. See Docket No. 1-2 at 29-32. In fact, ICE does not allege that the
Palestinian Authority has agreed to accept Mr. Fadwa at all. Thus, the Court has
good reason to believe that Mr. Fadwa will not be removed in the reasonably
foreseeable future. Therefore, the burden shifts to respondents to present sufficient
evidence to show that removal is likely. Zadvydas, 533 U.S. at 701.
Respondents argue that its evidence “demonstrates that ICE has made
efforts during the past nine months to effectuate Petitioner’s removal.” Docket No.
10 at 9 (citing Docket No. 10-1). In fact, ICE has made many efforts to remove Mr.
Fadwa. ICE solicited acceptances from Turkey, Israel, and Lebanon (albeit
improperly), ICE attempted to charter a SHRC flight to the Palestinian Territories or
to a neighboring country, and ICE submitted travel documents to the Israeli
government and followed up on its submission on four separate occasions. Docket
No. 10-1 at 5-6, ¶¶ 20-27. However, Zadvydas rejected the proposition that
continued detention is permissible “as long as good faith efforts to effectuate . . .
deportation continue.” 533 U.S. at 702 (internal quotations and citation omitted).
Instead, the government must actually make legitimate progress towards removal.
See Hassoun v. Sessions, 2019 WL 78984, at *5 (W.D.N.Y. Jan. 2, 2019) (stating
that “the reasonableness of Petitioner’s detention turns on whether and to what
extent the government’s efforts are likely to bear fruit. Diligent efforts alone will not
support continued detention.”).
Here, respondents have not provided evidence indicating that its efforts are
likely to succeed in effectuating Mr. Fadwa’s timely removal. While ICE followed up
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with Israel on the status of Mr. Fadwa’s travel documents four separate times,
respondents do not claim that Israel ever responded to that outreach. Docket No.
10-1 at 6, ¶ 26. Moreover, the lengthy timeframe in which Israel typically responds
has already lapsed. Id. And while ICE claims that it plans to coordinate Mr.
Fadwa’s removal by flying him to Tel Aviv and escorting him to the West Bank or
Gaza, it does not provide any details on how that plan would be effectuated. Id.,
¶ 27. ICE does state that it successfully removed multiple Palestinians in this
manner in Fiscal Year 2025, but it does not provide any details as to how those
removals occurred or give any reason to believe that Mr. Fadwa is similarly situated.
Docket No. 10-1 at 6, ¶ 28. Nor does ICE claim that the Palestinian Authority is
willing to accept Mr. Fadwa. Although ICE claims that removal is significantly likely
in the near future, it has received no response from any country regarding Mr.
Fadwa’s acceptance and offers no concrete plan for removal even if travel
documents were issued.
ICE offers to update the Court in thirty days on its efforts to remove Mr.
Fadwa to the Palestinian Territories. Id., ¶ 29. However, there is no reason for the
Court to believe removal would be any closer in 30 days when respondents’ diligent
efforts have not led to Mr. Fadwa’s removal in the past ten months. Other courts
have granted habeas petitions under Zadvydas when the government has not
offered evidence that there is progress towards removal. See S.F. v. Bostock, 2025
WL 2841022, at *4 (D. Or. Oct. 7, 2025) (finding the government’s evidence that the
petitioner “could be a candidate” for a scheduled charter flight to Iran “speculative”
and “insufficient to rebut Petitioner’s showing that removal is not significantly likely
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within the reasonably foreseeable future.”); Vaskanyan v. Janecka, 2025 WL
2014208, at *5 (C.D. Cal. June 25, 2025) (finding that petitioner’s pending
citizenship application to Armenia was insufficient to rebut petitioner’s showing even
when “the government may receive a response from Armenia in the near term”);
Hassoun, 2019 WL 78984, at *5 (finding that the government had not met its burden
when it had four requests for travel documents from third countries pending for
about five months and only made “general and vague” assertions regarding the
status of those requests). Here, while respondents have provided evidence that
they are making efforts to effectuate removal, they have not provided evidence that
removal is likely in the reasonably foreseeable future. Therefore, respondents have
not met their burden under Zadvydas. Mr. Fadwa’s continued detention is therefore
unconstitutional. Accordingly, the Court will grant Mr. Fadwa’s habeas petition and
order his release pursuant to 28 U.S.C. § 2241(c)(3).
C. Additional Relief
Besides seeking release from detention, Mr. Fadwa asks the Court to do the
following:
1. Assume jurisdiction over this matter;
2. Issue an order under the All Writs Act that Petitioner not be removed from
this District while this petition is pending;11
3. Declare that Mr. Fadwa’s detention violates the Due Process Clause of the
Fifth Amendment to the U.S. Constitution;
4. Declare that Mr. Fadwa’s detention violates the Immigration and Nationality
Act;
11 Mr. Fadwa requests that the Court invoke the All Writs Act, 28 U.S.C.
§ 1651(a), to prevent any transfer of Mr. Fadwa out of the District of Colorado during the
pendency of his habeas petition. Docket No. 1 at 4, ¶¶ 17-19. This request is moot,
given that the Court will grant the petition.
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5. Preclude Respondents from removing Mr. Fadwa to a third country without
following proper procedures;
6. Grant attorneys’ fees and costs of this suit under the Equal Access to Justice
Act, 5 U.S.C. § 504 and 28 U.S.C. § 2412(2), et seq.
Docket No. 1 at 15.
Mr. Fadwa’s fifth form of relief, seeking to “[p]reclude Respondents from
removing Mr. Fadwa to a third country without following proper procedures,” is not
available as a form of relief under 28 U.S.C. § 2241. A “petition for writ of habeas
corpus is only available to challenge the fact or duration of confinement.” Basri v.
Barr, 469 F. Supp. 3d 1063, 1066 (D. Colo. 2020). Therefore, Mr. Fadwa’s request
that respondents follow “proper procedures” before removing him to a third country
is outside the relief available on a petition for writ of habeas corpus. “The habeas
statute, 28 U.S.C. § 2241, grants federal courts the power to enforce the right of
personal liberty by granting release or order of bond hearing, but does not create
other injunctive powers in the federal courts.” Rios v. Noem, 2025 WL 3141207, at
*4 (S.D. Cal. Nov. 10, 2025) (granting petitioner's petition for writ of habeas corpus
and ordering that petitioner be released from immigration custody, but declining to
enter “three forms of injunctive relief requiring Respondents to comply with the law”)
(citing Fay v. Noia, 372 U.S. 391, 430-31 (1963)).
Mr. Fadwa’s requests for declaratory relief—seeking a declaration that his
detention violated the Fifth Amendment and the INA—are moot because the Court
will order respondents to release Mr. Fadwa. A “declaratory relief claim is moot if
the relief would not affect the behavior of the defendant toward the plaintiff.” Robert
v. Austin, 72 F.4th 1160, 1164 (10th Cir. 2023) (citation omitted). However, such
claims are not moot if “(1) secondary or collateral injuries survive after resolution of
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the primary injury; (2) the issue is deemed a wrong capable of repetition yet evading
review; (3) the defendant voluntarily ceases an allegedly illegal practice but is free
to resume it at any time; or (4) it is a properly certified class action suit.” Riley v.
I.N.S., 310 F.3d 1253, 1257 (10th Cir. 2002) (internal quotation and citations
omitted). A declaration that Mr. Fadwa’s detention was unlawful would not affect
respondents’ behavior toward Mr. Fadwa now that he has been ordered released,
and the Court does not find, and Mr. Fadwa does not argue, that any of the
mootness exceptions apply. See Vaupel v. Ortiz, 244 F. App'x 892, 896 (10th Cir.
2007) (unpublished) (holding that petitioner's declaratory claims for relief were moot
after petitioner's release and deportation, declining “to issue an advisory opinion
regarding the legality of [petitioner's] detention, because a declaratory judgment on
that question would have no meaningful effect on the Department of Homeland
Security's future conduct towards him”) (internal quotation, alteration, and citation
omitted); A.N.M.L. v. Garland, 2021 WL 1853577, at *2 (S.D. Cal. May 10,
2021) (finding that petitioner's request for a declaration that her detention violated
the law was moot upon petitioner’s release from DHS custody).
As for Mr. Fadwa’s request for attorneys’ fees, the Court will not consider the
request because Mr. Fadwa fails to comply with the Local Rules of the District of
Colorado. A motion for attorneys’ fees must be filed in accordance
with D.C.COLO.LCivR 54.3. See D.C.COLO.LCivR 54.3 (“Unless otherwise
ordered, a motion for attorney fees shall be supported by affidavit....The Motion
shall include...for each person for whom fees are claimed: (1) a summary of
relevant qualifications and experience; and (2) a detailed description of the services
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rendered, the amount of time spent, the hourly rate charged, and the total amount
claimed.”).
IV. CONCLUSION
Therefore, it is
ORDERED that the Verified Petition for Writ of Habeas Corpus [Docket No.
1] is GRANTED. It is further
ORDERED that Mr. Fadwa shall be released from custody on or before
December 23, 2025. It is further
ORDERED that respondents shall submit a status report on or before
December 23, 2025.
DATED December 9, 2025.
BY THE COURT:
s/ Philip A. Brimmer___________
PHILIP A. BRIMMER
Chief United States District Judge
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